Applicant Name:  ?????

Application Receipt Date: 2011/08/18	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant requests, in effect, to the remove the narrative reason, “unacceptable conduct,” from his DD Form 214.  In addition, he requests that his GOMOR rebuttal and his response to his AR 15-6 investigation be reviewed, and the situation involving his removal from command be considered.  He states, in effect, that the allegations leveled against him were overblown and some, outright erroneous.  His former 1SG told him that he, the 1SG, would not leave the wire in Iraq.  While he asked for the 1SG’s termination, he, the applicant, was terminated, instead.  The GOMOR should have been locally filed and he should have been given the opportunity to finish his service commitment.  

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: NIF
Discharge Received: 			   Date: 091214   Chapter: 4, paragraphs 4-2b; 4-24a(1)    AR: 600-8-24
Reason: Unacceptable Conduct	   RE:     SPD: BNC   Unit/Location: HHC, 1st Infantry Division, 2nd Brigade, Fort Riley, KS 

Time Lost: None

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  22
Current ENL Date: 010602    Current ENL Term: Indefinite Years  ?????
Current ENL Service: 	08 Yrs, 06 Mos, 13 Days ?????
Total Service:  		08 Yrs, 06 Mos, 13 Days ?????
Previous Discharges: 	None
Highest Grade: O-3		Performance Ratings Available: Yes    No 
MOS: 13A (Field Artillery, General)   GT: NIF   EDU: 16 Years   Overseas: SWA   Combat: Iraq x 3 (030318-040307); (051222-060617); (081008-091003)
Decorations/Awards: BSM; ARCOM; JSAM; AAM-6; NDSM; ICM-2CS; GWOTEM; GWOTSM; ASR; OSR-3; VUA; MUC

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None listed.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 22 June 2009, the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 4, paragraphs 4-2b(5) and (8), AR 600-8-24, by reason of misconduct, moral or professional dereliction.  
       The applicant was directed to show cause for retention in the Army after receiving a General Officer Memorandum Reprimand, dated 26 December 2008, for acts of personal misconduct, and conduct unbecoming an officer.  He was advised that he could submit a voluntary resignation in lieu of elimination or submit a rebuttal and request an appearance before a Board of Inquiry.  The record reflecting that the applicant appeared, with counsel, before a Board of Inquiry (Show Cause Board) and the record which reflects whether a Board had convened and found that the applicant committed an act of personal misconduct as substantiated by a General Officer Memorandum Reprimand, dated 26 December 2008, are not available. 
       
       However, on 19 August 2009, the applicant consulted with legal counsel and voluntarily tendered his resignation from the Army in writing, under the provisions (UP) of Chapter 4, paragraphs 4-2(b) and (8), AR 600-8-24, for the good of the Service in lieu of further elimination proceedings or a board of inquiry.  The applicant indicated he understood that he will receive an honorable discharge.  The GCMCA Convening Authority recommended disapproval of the request for resignation in lieu of elimination proceedings.  
       
       On an unspecified date, the Ad Hoc Review Board review the resignation in lieu of elimination based on misconduct and moral or professional dereliction UP AR 600-8-24, paragraph 4-2b, that was tendered by the applicant. However, the record that reflects the Board's recommendation regarding the acceptance of the applicant’s resignation or the characterization of his discharge is not available.  
       
       On 20 November 2009, the Deputy Assistant Secretary (Army Review Boards), based on the DA, Ad Hoc Review Board's review of the resignation in lieu of elimination tendered by the the applicant, accepted the applicant's resignation and directed that the applicant’s discharge with an Honorable characterization of service. 

       b.  Legal Basis for Separation:  
       Army Regulation 600-8-24 sets forth the basic authority for Officer Transfers and Discharges.  Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security.
       
       Army Regulation 600-8-24 sets forth the basic authority for officer transfers and discharges.  Chapter 4 outlines the policy and procedure for eliminating an officer from the Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security.  AR 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates no deviation is authorized.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of the entire applicant’s military records, and the issues and documents he submitted, the analyst determined that the evidence was not sufficiently mitigating to warrant a change to the narrative reason for discharge on the applicant's DD Form 214.  
       
       The applicant was discharged under the provisions of Chapter 4, Paragraphs 4-2b and 4-24a(1), AR 600-8-24, pursuant to this request and acceptance of his resignation.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Unacceptable Conduct” and the separation code is "BNC."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation. 
       
       The applicant’s discharge subsequent to his request for resignation and the narrative reason for his discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by Army Officers.  The applicant provided insufficient evidence that demonstrates that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or duty performance.  
       
       The applicant contends that he was unjustly and unfairly discharged, because his GOMOR, the basis of his elimination proceedings that led to his resignation and discharge, should have been locally filed and that he should have been given the opportunity to finish his service commitment based on his assertions that the allegations against him were overblown and some that were outright erroneous.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the applicant produced sufficient evidence, to support the contention that he was unjustly discriminated.  The applicant’s statements alone do not overcome the government’s presumption of regularity and he has provided insufficient evidence in support of his request to change the narrative reason for his discharge.  
       
       The applicant also contends that he had asked for the termination of his first sergeant, but that he (the applicant) was terminated instead.  However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.  
       
       The analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 
       
       In view of the foregoing, the analyst determined that the reason for the applicant's discharge was both proper and equitable, and recommends to the Board to deny relief. 

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 30 August 2012         Location: Chicago, IL

Did the Applicant Testify?  Yes     No  

Counsel:  None

Witnesses/Observers: None 

Exhibits Submitted: DD Form 149, dated 18 August 2011; Personal Statement to CDR, HRC; Memorandum, dated 22 June 2009, Subject: Initiation of Elimination; GOMOR correspondence/packet; E-mail correspondence, dated 23 March 2009, Subject: RE: [Applicant] Recommendation for Elimination; DA Form 268 (FLAG), dated 22 June 2009; Congressional corrrespondences, dated 4 May, 8 April, 5 March, and 17 February 2009; Memorandum, dated 16 November 2008 with questions/answering session, Subject: AR 15-6 Investigation; Referred OER (20080419-20081210) with request for CI, dated 17 February 2009 and Comments, dated 19 January 2009; OERs x 7 (for period from 20020131 through 20080413); Letters of Support x 6; Additional Letters of Support x 26; Sworn Statement, dated 2 January 2009; Personal Statement to Bde CDR; Memorandum for Record, dated 18 April 2008, Subject: Conduct While Deployed; Memorandum for Record, dated 18 April 2008, Subject: Command Philosophy.











 

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony and considering the analyst's recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief.
        
IX.  Board Decision						
Board Vote:
Character - Change NA    No change NA
Reason -     Change 2    No change 3
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




ARCHIE L. DAVIS III
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder














Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20120002774
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